Latest DWI Cases In the News
DWI w/ Accident
Case No. 1670599 – Albert A.
DISMISSED September 7, 2010
Albert was a patent / trademark / intellectual property rights attorney who got his first taste of criminal law when arrested for DWI after an accident with an open container. The man he hit observed Albert pouring out the contents of his open container on the ground while waiting for police to arrive. The three Complainants in the car Albert had hit then related to police his several indicia of intoxication: strong odor of alcohol, weaving gait, slurred speech, that he tried to flee the scene and that he confusedly offered his AAA card as his insurance. Police verified this in the O.R. and further added that he was “staggering at the scene” and that Albert claimed his odor came from having his alcoholic beverage poured on him by the Complainant. Red eyes, face and nose are sometimes caused by alcohol but Allbert has the medically verified condition of rosacea which also causes redness to the nose, face and eyes. A story change by a defendant is never good so Albert didn’t help his case when he changed his story to police at the scene as to how the accident happened. Police took crime scene photos of the accident which were submitted as evidence. Albert requested the Breath Test three times at the scene but was denied the right to give a sample. We also exploited several problems with the Sobriety Test including the offier’s improper administration of the HGN (eye movement) test which included several defects, among which was the failure to advise our client to remove his glasses. Albert needed surgery which required us to file a Motion for Continuance to reset our Jury Trial date but we used this additional time to further prepare. Compelling Pre-Trial Motions were filed and one of our team of experts was lined up to testify on the problems with the officer’s administration of the Field Sobriety Test. This was not an easy victory for us but we were able to win our Dismissal on the eve of Trial.
DWI 2nd Arrest- BT REFUSAL/SFST FAILURE
Case No. 1659042 – Thomas T.
DISMISSED - May 11, 2010
Thomas doubted whether we could pull off another Dismissal [see below]. His friend was intoxicated and had asked Tom to drive. In what sounds like one of the best “yeah yeah sure sure a likely story” stories we’ve heard in a long time, Tom informed us that the huge swerve he was pulled over for making was actually caused by his intoxicated passenger who grabbed the wheel. Tom failed the sobriety test. The police didn’t buy it. We made sure the DA’s did. Two DWI Dismissals in four months… we pulled it off but – Tom - don’t do it again!
DWI 2nd – BT & SFST REFUSAL
Case No. 1659042 – Russell J.
DISMISSED - May 4, 2010
Russell was stopped for speeding after leaving a sports bar. He refused everything – breath and field sobriety tests. The Offense Report stated he had a blank stare and was uncooperative – usual indices of intoxication. When told to cooperate or he would be arrested his only reply was, “Let’s go.” Moreover, he stated that he had just left his girlfriend’s house whereas a large part of our defense was witness testimony from several drinking witnesses at the bar he had just left. Despite the obvious lie to police and the lack of cooperation, we were able to argue this DWI 2nd charge to Dismissal with the aid of drinking witness testimony backed up by an Affidavit of Business Records from Russell’s credit card issuer verifying the amount of alcohol purchased from the bar. DWI 2nd – BT Failure
Case No. 1642218 – Gilbert E.
DISMISSED - February 03, 2010
Gilbert was stopped after a concerned citizen called police saying that he was swerving. He failed the breath test and admitted to Wild Turkey with friends at a bar. We beat this 2nd DWI for him by arguing that he passed the Rhomberg and walk and turn tests on his field sobriety video as well as using the extrapolation defense.
DWI - BT FAILURE
Case No. 1622875 – Thomas T.
DISMISSED - January 21, 2010
This was the first of the two DWI Dismissals we won for Thomas in four months. Tom was discovered by police passed out in his vehicle with the engine running. He was obviously intoxicated and failed the breath and sobriety tests. Our defense revolved not around the issue of intoxication but whether police could wheel him - prove he had been driving beyond a reasonable doubt. Through a careful reconstruction of Thomas’ timeline that evening, involving friends and several restaurant and club visits as well as a convoluted transporting of various people to various vehicles, including sworn witness testimony and cell phone records to verify who called whom and when …. we were able to knock this one out just on the eve of trial.
In Barbernell v. State, 221 S.W.3d 914 (Tex.App.– Beaumont 2007), the State appealed an order granting a motion to quash.
DWI: Pleading Manner And Means Of Intoxication
Barbernell was charged with DWI. The information did not designate
the manner and means on intoxication. Barbernell filed a motion to
quash the information, maintaining it failed to provide him with
adequate notice of which of the two manners and means of committing
DWI the State intended to prove. The motion was granted and the State
appealed. The State argued the trial court erred in granting the
motion to quash because the manner and means of intoxication was an
evidentiary matter that the State is not required to plead.
BARBERNELL, NO. PD-0867-07 (Tex.Crim.App. 7-2-08) (Opinion by Keasler,
J.) PDR was granted to address whether the manner of intoxication –
loss of faculties or alcohol concentration — is an element of DWI
which must be alleged in the charging instrument. Reversed. The CCA
held: (1) “intoxicated” is an element of DWI and the two definitions
of “intoxicated,” are purely evidentiary matters that need not to be
alleged in a charging instrument to provide sufficient notice; (2) the
information, though it did not allege either definition of
“intoxicated,” provided Barbernell with adequate notice, and the CA
erred to conclude otherwise. Read more…
